SECURITY PRINTING AND MINTING CORPORATION OF INDIA LTD. & ORS. ETC versus VIJAY D. KASBE AND ORS. ETC on 18 April 2023

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[2023] 4 S.C.R.

ASECURITY PRINTING AND MINTING CORPORATION OFINDIA LTD. & ORS. ETC.

v.

VIJAY D. KASBE AND ORS. ETC.

(Civil Appeal Nos. 2911-2920 of 2023)

B

APRIL 18, 2023

[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]

Service Law – Government servants – Claim of Over TimeAllowance u/s.59(1), Factories Act – Denial of – Held: AppointmentCeither to a civil post or in the civil services of the Union or the Stateis not an employment governed strictly by a contract of service orsolely by labour welfare legislations, but by statute or statutoryrules issued u/Article 309 or its proviso – Unlike those employed infactories and industrial establishments, persons in public serviceDwho are holders of civil posts or in the civil services of the Union orthe State are required to place themselves at the disposal of theGovernment all the time – In the present case, the claim of therespondentsarose at the time when they were Central Governmentservants – Thus, the respondents who were holders of civil posts orin the civil services of the State at the relevant time, could not haveEclaimed the benefits of the provisions of Chapter VI of the 1948Act, dehors the service rules – Orders of the Tribunal and the HighCourt unsustainable – Impugned order of the High Court set aside– Factories Act 1948 – Chapter VI – s.59(1) – Constitution of India– Article 309, 313 – Fundamental Rules and the SupplementaryFRules 1922 – r. 11.

Factories Act 1948 – Chapter VI – s.64 – MaharashtraFactories Rules, 1963 – r.100 – Held: Admittedly, the StateGovernment is conferred with the power u/s.64(1) to make exemptingRules – In exercise of the power so conferred, the State ofGMaharashtra framed r.100 wherein the post of Supervisor is includedin r.100, as a post exempted from the application of the provisionsof Chapter VI of the Act – Also, the chart of duties indicated in theACRs does not show that the respondents are required to performmanual labour or clerical work as a regular part of their duties –High Court erred in holding that the performance of certainH

functions, such as setting right malfunctioning of feeder, side-lay,double-sheet detector, photocell, etc., to ensure uninterruptedrunning of the machinery, are manual functions.

Constitution of India – Articles 226/227, 136 – Findings offact recorded by Tribunal, interference with – Held: Normally, theHigh Court exercising supervisory jurisdiction u/Art.226/227 andSupreme Court exercising jurisdiction u/Art.136, will not be inclinedto interfere with the findings of fact recorded by a Tribunal –However, in the present case, the Central Administrative Tribunalreached diametrically opposite findings of fact, in two different setsof cases filed by employees holding similar supervisory posts, bothof which cannot co-exist.

Service Law – Persons in the civil services of the Union/State,persons holding civil posts under the Union/State – Service matterdispute including claim for allowances raised before AdministrativeTribunal – Duty of the Tribunal – Discussed – Constitution of India–Article 309, proviso to Art.309 – Administrative Tribunals Act, 1985– ss.3(q), 28.

Industrial Disputes Act, 1947 – s.2(s) – Factories Act 1948 –s.2(l)– Held: Definition of “workman” in s.2(s) of the 1947 Actspecifically excludes persons employed in a supervisory capacity –But, such an exclusion is not there in the definition of the very sameword “worker” in s.2(l) of the 1948 Act.

Tribunals/Courts – Adjudicating dispute relating to conditionsof service of an employee – Three different categories of employmentenumerated – Held: Court/Tribunal should keep in mind the differentparameters applicable to the three different categories ofemployment.

Allowing the appeals, the Court

Conclusion

HELD: 1.1 The claim of the respondents for payment ofDouble Over Time Allowance arose entirely during the periodfrom 1988 to 2005. Since the ‘Corporation’ was incorporated onlyon 13.1.2006 and all the nine production units coming under thecontrol of the Currency and Coinage Division of the Departmentof Economic Affairs, Ministry of Finance, Government of Indiawere transferred to the Corporation only with effect from10.2.2006, the claim of the respondents obviously arose at the ABC

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Atime when they were Central Government servants. In otherwords, their claim should be considered to have arisen only inrelation to “service matters” of persons appointed to “a servicein connection with the affairs of the Union” or in relation to “holdersof civil post.” The definition of the expression “service matters”,is provided in Section 3(q) of the Administrative Tribunals Act,B1985. It is seen from sub-clause (i) of clause (q) of Section 3extracted above that any issue relating to remuneration includingallowances, is a service matter. The respondents herein, at leastduring the period from 1988 till the year 2006, were eitherholders of civil posts under the Union or appointed to the civilCservices of the Union. This is why the respondents approachedthe Central Administrative Tribunal, for the adjudication of theirservice matter. [Paras 16-19][257-C-E; 258-C-D]

1.2 Primarily, the terms and conditions of service of personsin the civil services of the Union or the State and persons holdingDcivil posts under the Union or the State, are regulated either bythe Acts of the appropriate Legislature passed in terms of Article309 or by the Rules framed in exercise of the power conferred bythe proviso to Article 309 of the Constitution. Therefore,whenever a dispute relating to a service matter, which includes aclaim for allowances, is raised before the Administrative Tribunal,Ethe primary duty of the Tribunal is to see what is provided by therelevant Act issued under the main part of Article 309 or theRules issued under the Proviso to Article 309. Appointment eitherto a civil post or in the civil services of the Union or the State, isone of a status. It is not an employment governed strictly by aFcontract of service or solely by labour welfare legislations, but bystatute or statutory rules issued under Article 309 or its proviso.In fact, the history of civil service in India is more than a centuryold and there were Rules in force, such as the Fundamental Rulesand the Supplementary Rules (FRSR) issued way back in the year1922, with effect from 1.1.1922. Article 313 of the ConstitutionGdeclares that until other provision is made under the Constitution,all the laws in force immediately before the commencement ofthe Constitution and applicable to any public service or post, shallcontinue in force. This is why the Fundamental Rules of the year1922 continue to apply even now, to the holders of civil posts andH

those in the civil services of the Union or the State. [Paras 20-22][258-E-H; 259-A-B]

1.3 Unlike those employed in factories and industrialestablishments, persons in public service who are holders of civilposts or in the civil services of the Union or the State are requiredto place themselves at the disposal of the Government all thetime. In the light of the above Rule, there was actually no scopefor the respondents to seek payment of Double Over TimeAllowance. No benefit can be claimed by anyone dehors thestatutory rules. Unfortunately, the Central Administrative Tribunalcompletely lost sight of those Rules, and the distinction betweenemployment in a factory and employment in Government service.[Paras 24, 25][259-E, G-H; 260-A]

1.4 Persons who are not holders of civil posts nor in thecivil services of the State but who are governed only by the 1948Act, may be made to work for six days in a week with certainlimitations as to weekly hours under Section 51, weekly holidaysunder Section 52, daily hours under Section 54, etc. Workerscovered by Factories Act do not enjoy the benefit of automaticwage revision through periodic Pay Commissions like those inGovernment service. Persons holding civil posts or in the civilservices of the State enjoy certain privileges and hence, the claimmade by the respondents ought to have been tested by theTribunal and the High Court, in the proper perspective to seewhether it is an attempt to get the best of both the worlds.Admittedly, the State Government is conferred with the powerunder Section 64(1) to make exempting Rules. In exercise ofthe power so conferred, the State of Maharashtra has framed Rule100. Apparently, the post of Supervisor is included in Rule 100,as a post exempted from the application of the provisions ofChapter VI. The chart of duties indicated in the ACRs does notshow that the respondents are required to perform manual labouror clerical work as a regular part of their duties. The High Courtfell into an error in holding that the performance of certainfunctions, such as setting right malfunctioning of feeder, side-lay,double-sheet detector, photocell, etc., to ensure uninterruptedrunning of the machinery, are manual functions. In any case, the AB

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Arespondents, who are holders of civil posts or in the civil servicesof the State till the year 2006, could not have claimed the benefitsof the provisions of Chapter VI of the 1948 Act, dehors the servicerules. The Tribunal as well as the High Court did not considerthe distinction between persons in Government service and those in private service and the effect of the statutory rules upon theBconditions of service of the respondents, including their liabilityto work for extra hours. The Tribunal reached diametricallyopposite findings of fact in respect of persons holding similarsupervisory posts. The impugned order of the High Court is setaside. However, the appellants are not to effect any recoveryCfrom those to whom payments have already been made. [Paras27-29, 40 and 41][260-C-E; 261-E, G-H; 262-A-B; 263-H; 264-A-C]

Burmah Shell Oil Storage and Distribution Companyof India Ltd. v. The Burma Shell Management StaffAssociation & Ors.1970 (3) SCC 378 : [1971] 2 SCRD758 – held inapplicable.

Case Law Reference

[1971] 2 SCR 758held inapplicablePara 12

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2911-E2920 of 2023.

From the Judgment and Order dated 28.06.2018 of the High Courtof Judicature at Bombay in WP Nos. 7055, 7784, 7157, 7257, 7271,7480, 7758, 8273 of 2010, 2603 of 2007 and 8287 of 2010.

Dhruv Mehta, Sr. Adv., Abhishek Kumar, Harman Singh Sandhu,FRahul Shyam Bhandari, Shyam R. Agarwal, Advs. for the Appellants.

Ravindra Keshavrao Adsure, K. Parmeswar, Yash PrashantSonavane, Rohan Darade, Lav Mishra, Sandeep Sudhakar Deshmukh,Nishant Sharma, Tushar D. Bhelkar, Advs. for the Respondents.

The Judgment of the Court was delivered byG

V. RAMSUBRAMANIAN, J.

Leave granted.

2. Challenging a common order passed by the High Court ofJudicature at Bombay, in a batch of writ petitions affirming an order ofHthe Central Administrative Tribunal, holding that even those employees working as Supervisors are entitled to Double Over Time Allowance,the Management of the Security Printing & Minting Corporation of India[1]and others have come up with these appeals.

3. We have heard Shri Dhruv Mehta, learned senior counselappearing for the appellants and Shri R.K. Adsure, Shri K. Parameswarand Shri S.S. Deshmukh, learned counsel appearing for the respondents.

4. The case on hand has a checkered history with fortunesfluctuating from one side to the other. To the extent necessary, we shallnow trace the history as follows:-

(i) Till the year 2005, the Ministry of Finance, Government ofIndia had nine production units namely, four IndiaGovernment Mints, two Currency Note Presses, twoSecurity Printing Presses and one Security Paper Mill underits control. In the year 2006, a wholly owned Company underthe name and style of ‘Security Printing & MintingCorporation of India Ltd.’ was incorporated on 13.1.2006,for the purpose of taking over the management, control,maintenance and operations of those nine production unitswhich were functioning under the Currency and CoinageDivision of the Department of Economic Affairs, Ministryof Finance, Government of India. The transfer actually tookplace with effect from 10.2.2006.

(ii) The transfer of management automatically led to thetransfer of the workforce and along with the assets andliabilities of the nine production units, the Corporation alsoinherited some litigation, including the one on hand.

(iii) Way back in the year 1988, an order dated 21.12.1988 wasissued by the Special Officer (Currency & Coinage),Department of Economic Affairs, Ministry of Finance,Government of India, directing that the shop-floor and theministerial staff, falling under the category of non-gazettedsupervisory staff of the Presses and Security Paper Millwould be compensated for extended hours of work at certainrates. The order indicated that the category of staffmentioned therein would be entitled to a special allowance to 1 For short, “Corporation”

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252SUPREME COURT REPORTS

Abe paid in lieu of overtime allowance, at the rate of Rs.600/-per month for working of 9 hours and at the rates ofRs.1,000/- per month and Rs.1,400/- per month for workingof 10 hours and 11 hours respectively.

(iv) By a subsequent order issued by the Government of IndiaBon 11.4.2000, it was clarified that the staff whose basic payexceeded the ceiling limit of Rs.2,200/- per month in thepre-revised scales of pay, will not be entitled to any overtimeallowance.

(v) In the year 1988, a group of eight persons working asCSupervisors, Works Engineer, Section Officer, etc., in theCurrency Note Press, Nashik, filed a writ petition on thefile of the High Court of Judicature at Bombay in WritPetition No.3150 of 1988, claiming overtime allowance. Thewrit petition was transferred to Central AdministrativeTribunal in the year 1995. It was tagged along with a fewDoriginal applications directly filed before the Tribunal andby a common order dated 25.7.1997, the CentralAdministrative Tribunal dismissed all the applications, onthe ground that it had no jurisdiction to deal with a claimrelating to overtime allowance arising under the FactoriesEAct, 1948[2].

(vi) Challenging the said order of the Tribunal dated 25.7.1997,a few writ petitions came to be filed on the file of the HighCourt of Judicature at Bombay. During the pendency ofthe writ petitions, one more group of supervisory employeesF(A.K. Biswas and 20 others) filed an application in O.A.No.26 of 2000 on the file of the Central AdministrativeTribunal claiming the same reliefs. This application was alsodismissed by the Tribunal by an order dated 19.1.2001following the order passed on 25.7.1997 in the other cases.

G(vii)Therefore, A.K. Biswas and 20 others filed a writ petitionon the file of the High Court. By an order dated 27.1.2005,the High Court remanded the matter (A.K. Biswas andothers) back to the Tribunal for a fresh consideration. After H2 For short, “1948 Act”

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remand, the Tribunal allowed the application filed by A.K.Biswas and others by an order dated 4.4.2005. But thisorder was set aside by the High Court in a writ petitionfiled by the Union of India, on the ground that an amendmentto Section 70 of the Bombay Shops and Establishments Actwas not considered by the Tribunal. This order of the HighCourt remanding the matter back to the Tribunal for a secondtime was dated 31.1.2006.

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(viii) Following the second order of remand passed by the HighCourt on 31.1.2006 in the case filed by A.K. Biswas andothers, the writ petitions already pending and arising out ofCearliest writ petition of the year 1988 were also allowedand the matter remanded back to the Tribunal for a freshconsideration.

(ix) Unfortunately, after the remand, the Tribunal first took upfor consideration O.A. No.26 of 2000 filed by A.K. BiswasDand others and dismissed the same by an order dated15.9.2006.

(x) After nearly four years of disposal of the application filedby A.K. Biswas and others, the Tribunal took up all otherapplications, pending from 1995 onwards (and one of whichErelated to the writ petition of the year 1988 and which gottransferred to the Tribunal in the year 1995). By a commonorder dated 9.6.2010, the Central Administrative Tribunalheld that the applicants therein were entitled to Double OverTime Allowance in terms of Section 59(1) of the 1948 Act.After holding so, the Tribunal confined the relief, only to aFperiod of two years prior to the filing of the respectiveoriginal applications, insofar as arrears were concerned.

(xi) Aggrieved by the dismissal of their application in O.A. No.26of 2000 by the Tribunal by an order dated 15.9.2006, A.K.Biswas and others filed a writ petition in Writ PetitionNo.2603 of 2007 on the file of the High Court.

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(xii) In the meantime, the Corporation had come into existenceand, hence, the Union of India as well as the Corporation,along with the India Security Press and Currency Note Pressfiled a batch of writ petitions challenging the second order H

Aof the Central Administrative Tribunal dated 9.6.2010.

(xiii) In other words, the rejection by the Tribunal of the claim ofone set of employees (A.K.Biswas and others) was thesubject matter of one writ petition and the grant of relief bythe Tribunal in favour of the other group of employees wasthe subject matter of a separate batch of writ petitions.

B

(xiv) By a common order dated 28.6.2018, the High Court ofJudicature at Bombay dismissed all the writ petitions filedby the Union of India and the Corporation. Coming to thewrit petition filed by A.K. Biswas and others, the High CourtCfound that the employees were similarly placed and thatthey were entitled to the same benefits as given to the otheremployees. However, the High Court found that some ofthe employees had already compromised the matter withthe Management and that therefore the relief should beconfined only to those employees who had not compromised.DAccordingly, the High Court allowed the writ petition filedby A.K. Biswas and others, granting relief only to thoseemployees who had not compromised the matter with themanagement.

(xv) It is against the said common order passed by the HighECourt on 28.6.2018 that the Corporation has come up withthe above appeals.

5. From the narration of facts provided above, it will be clear thatthe only question which falls for our consideration is: as to whether personsemployed as Supervisors are entitled or not, to Double Over TimeFAllowance in terms of Section 59(1) of the 1948 Act?

6. For coming to the conclusion that the employees are entitled toDouble Over Time Allowance, the Tribunal started with two presumptions,namely (i) that the India Security Press, Currency Note Press and IndiaGovernment Mint would fall within the definition of the expressionG“factory” as defined in Section 2(m) of the 1948 Act; and (ii) that theemployees would fall within the definition of the expression “worker”as defined in Section 2(l) of the 1948 Act. As a sequitur, the Tribunalheld that these Supervisors, will, in the normal course, be entitled toextra wages for overtime in terms of Section 59(1) of the 1948 Act.

H7. But it was argued on behalf of the Union of India that under Section 64(1) of the 1948 Act, the State Government was entitled tomake Rules exempting the application of the provisions of Chapter VIof the Act to certain categories of workers. In exercise of the powerconferred by Section 64(1), the State of Maharashtra had issued a set ofRules known as Maharashtra Factories Rules, 1963[3], Rule 100 of whichexempted Supervisors from the application of the provisions of ChapterVI, provided they were not required to perform manual labour or clericalwork as a regular part of their duties. In the light of such a stand takenby the Union of India, the Tribunal, in the batch of applications decidedon 9.6.2010, framed the following question as arising for consideration:- “Whether in the facts and in the circumstances of the cases theapplicants in these OAs are entitled to double OTA under Section59(1) of the Factories Act, even after considering the provisionsof Section 64(1) of the Factories Act, 1948 read with the provisionsof Rule 100 of Maharashtra Factories Rule, 1963?”

8. After framing the issue as aforesaid, the Tribunal recorded afinding that the applicants before the Tribunal were doing clerical workas a part of their regular duties and that therefore they were excludedfrom the application of Rule 100 of the 1963 Rules, in view of the provisocontained therein. In view of the said finding, the Tribunal held that theapplicants before the Tribunal were entitled to Double Over TimeAllowance.

9. In contrast, the very same Tribunal found in its order dated15.9.2006 in the original application filed by A.K. Biswas and others thatthe applicants before the Tribunal were not performing any manual labouror clerical work as a regular part of their duties and that therefore byvirtue of Rule 100 of the 1963 Rules, they stood excluded from thebenefit conferred by Section 59(1) of the 1948 Act.

10. Thus, the Central Administrative Tribunal reached diametricallyopposite findings of fact, in two different sets of cases filed by employeeswho were identically placed and discharging identical duties andresponsibilities. The reason why we record this fact is that in normalcircumstances, the High Court exercising supervisory jurisdiction underArticle 226/227 and this Court exercising jurisdiction under Article 136,will not be inclined to interfere with the findings of fact recorded by aTribunal. But in this case, there are two diametrically opposite set of A

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Afindings, both of which cannot co-exist.

11. Keeping the above aspect in mind, let us now proceed toconsider the rival contentions.

12. Shri Dhruv Mehta, learned senior counsel appearing for theBappellants contended, (i) that a perusal of the list of duties assigned tothe respondents, as reflected by the ACRs clearly show that therespondents were performing supervisory duties, exercising control over50 to 100 workers; (ii) that as per the law laid down by this Court inBurmah Shell Oil Storage and Distribution Company of India Ltd.vs. The Burma Shell Management Staff Association & Ors.[4], a personCwhose predominant nature of work is supervisory, will not be qualifiedas a workman merely because he also carries on clerical/mechanicalwork incidental to his supervisory work; (iii) that the Tribunal as well asthe High Court failed to appreciate the scope of Rule 100 of the 1963Rules in the proper perspective; and (iv) that the Supervisors enjoyingDhigher scales of pay than workers, cannot claim the benefit of overtimeallowance as extended to workers.

13. In response, it is contended by Shri K. Parameswar, learnedcounsel appearing for the respondents, (i) that the decision in BurmahShell Oil Storage and Distribution Company of India Ltd. (supra)Ecannot have any application to the case on hand, since the definition ofthe expression “workman” under the Industrial Disputes Act, 1947[5]isquite different from the definition of the same expression under the 1948Act; (ii) that therefore the dominant nature test propounded in BurmahShell Oil Storage and Distribution Company of India Ltd. is notapplicable here; (iii) that the Tribunal and the High Court have found onFevidence that the respondents are performing manual labour or clericalwork as a regular part of their duties and, hence, Rule 100 of the 1963Rules has no application; and (iv) that the findings of fact recorded by aquasi-judicial tribunal cannot be interfered with lightly.

14. Shri S.S. Deshmukh, learned counsel appearing for some ofGthe respondents contended, (i) that the proviso to Section 64(1) of the1948 Act carves out an exception, in the case of persons drawing rate ofwages not exceeding the limit specified in Section 1(6) of the Payment 4 1970 (3) SCC 378H5 For short, “1947 Act”

of Wages Act, 1936[6], insofar as the claim for extra wages for overtimework is concerned; (ii) that therefore Rule 100 of the 1963 Rules has noapplication to the case of the respondents in view of the said proviso toSection 64(1); and (iii) that the Central Administrative Tribunal itselfhad passed orders in several applications, in favour of employeesidentically placed and working as Supervisors, the details of which areprovided in paragraph 5 of the counter affidavit filed by A.K. Biswas inthe above appeals and that therefore the orders of the Tribunal and theHigh Court do not call for any interference.

15. We have carefully considered the rival contentions.

16. At the outset, it should be noted that the claim of the respondentsfor payment of Double Over Time Allowance arose entirely during theperiod from 1988 to 2005. Since the ‘Corporation’ was incorporatedonly on 13.1.2006 and all the nine production units coming under thecontrol of the Currency and Coinage Division of the Department ofEconomic Affairs, Ministry of Finance, Government of India weretransferred to the Corporation only with effect from 10.2.2006, the claimof the respondents obviously arose at the time when they were CentralGovernment servants. In other words, their claim should be consideredto have arisen only in relation to “service matters” of persons appointedto “a service in connection with the affairs of the Union” or in relationto “holders of civil post.”

17. The definition of the expression “service matters”, is providedin Section 3(q) of the Administrative Tribunals Act, 1985[7]and it reads asfollows:-

“3. Definitions.—In this Act, unless the context otherwiserequires,—

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(q) “service matters”, in relation to a person, means all mattersrelating to the conditions of his service in connection with theaffairs of the Union or of any State or of any local or other authority within the territory of India orunder the control of the Government of India, or, as the case maybe, of any corporation or society owned or controlled by the 6 For short, “1936 Act”

7 For short, “1985 Act”

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AGovernment, as respects—

(i) remuneration (including allowances), pension and otherretirement benefits;

(ii) tenure including confirmation, seniority, promotion, reversion,premature retirement and superannuation; B

(iii) leave of any kind;

(iv) disciplinary matters; or

(v) any other matter whatsoever;”

18. It is seen from sub-clause (i) of clause (q) of Section 3 extractedCabove that any issue relating to remuneration including allowances, is aservice matter. The respondents herein, at least during the period from1988 till the year 2006, were either holders of civil posts under the Unionor appointed to the civil services of the Union.

19. This is why the respondents approached the CentralDAdministrative Tribunal, for the adjudication of their service matter. Therespondents did not go either before the Labour Court constituted underthe 1947 Act or before the Authorities empowered under other labourwelfare legislations, despite Section 28 of the 1985 Act not excluding thejurisdiction of the Industrial Tribunal or the Labour Court. Keeping thisEin mind, let us now address a more fundamental question.

20. Primarily, the terms and conditions of service of persons inthe civil services of the Union or the State and persons holding civilposts under the Union or the State, are regulated either by the Acts ofthe appropriate Legislature passed in terms of Article 309 or by theRules framed in exercise of the power conferred by the proviso to ArticleF309 of the Constitution. Therefore, whenever a dispute relating to aservice matter, which includes a claim for allowances, is raised beforethe Administrative Tribunal, the primary duty of the Tribunal is to seewhat is provided by the relevant Act issued under the main part of Article309 or the Rules issued under the Proviso to Article 309.

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21. It must be kept in mind that appointment either to a civil postor in the civil services of the Union or the State, is one of a status. It isnot an employment governed strictly by a contract of service or solelyby labour welfare legislations, but by statute or statutory rules issuedunder Article 309 or its proviso.

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22. In fact, the history of civil service in India is more than acentury old and there were Rules in force, such as the FundamentalRules and the Supplementary Rules (FRSR) issued way back in theyear 1922, with effect from 1.1.1922. Article 313 of the Constitutiondeclares that until other provision is made under the Constitution, all thelaws in force immediately before the commencement of the Constitutionand applicable to any public service or post, shall continue in force. Thisis why the Fundamental Rules of the year 1922 continue to apply evennow, to the holders of civil posts and those in the civil services of theUnion or the State.

23. It must also be borne in mind that there are three differentcategories of employment, if not more, in the country. They are,(i) employment which is statutorily protected under labour welfarelegislations, so as to prevent exploitation and unfair labour practices;(ii) employment which falls outside the purview of the labour welfarelegislations and hence, governed solely by the terms of the contract; and(iii) employment of persons to civil posts or in the civil services of theUnion or the State. Any Court or Tribunal adjudicating a dispute relatingto conditions of service of an employee, should keep in mind the differentparameters applicable to these three different categories of employment.

24. Unlike those employed in factories and industrial establishments,persons in public service who are holders of civil posts or in the civilservices of the Union or the State are required to place themselves atthe disposal of the Government all the time. Rule 11 of the FundamentalRules reads as under:- “Unless in any case it be otherwise distinctly provided, the wholetime of a Government servant is at the disposal of the Governmentwhich pays him, and he may be employed in any manner requiredby proper authority, without claim for additional remuneration,whether the services required of him are such as would ordinarilybe remunerated from general revenues, from a local fund or fromthe funds of a Body incorporated or not, which is wholly orsubstantially owned or controlled by the Government.”

25. In the light of the above Rule, there was actually no scope forthe respondents to seek payment of Double Over Time Allowance. It isneedless to say that no benefit can be claimed by anyone dehors thestatutory rules. Unfortunately, the Central Administrative Tribunalcompletely lost sight of those Rules, and the distinction between AB

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Aemployment in a factory and employment in Government service, despitethe Union of India raising this as a specific issue in paragraph 12 of thecounter filed in O.A. No.428 of 2005 before the Central AdministrativeTribunal.

26. The claim of the respondents before the Tribunal was notBbased on any statutory rule but based entirely upon Section 59(1) of the1948 Act.

27. Persons who are not holders of civil posts nor in the civilservices of the State but who are governed only by the 1948 Act, maybe made to work for six days in a week with certain limitations as toCweekly hours under Section 51, weekly holidays under Section 52, dailyhours under Section 54, etc. Workers covered by Factories Act do notenjoy the benefit of automatic wage revision through periodic PayCommissions like those in Government service. Persons holding civilposts or in the civil services of the State enjoy certain privileges andhence, the claim made by the respondents ought to have been tested byDthe Tribunal and the High Court, in the proper perspective to see whetherit is an attempt to get the best of both the worlds.

28. Admittedly, the State Government is conferred with the powerunder Section 64(1) to make exempting Rules. In exercise of the powerso conferred, the State of Maharashtra has framed Rule 100, whichEreads as follows:- “Rule - 100:

PERSONS DEFINED TO HOLD POSITION OFSUPERVISION OR EMPLOYED IN A CONFIDENTIALPOSITION.F

(1) In a factory the following persons shall be deemed to holdposition of supervision or management within the meaning of sub-section (1) of section 64, provided they are not required to performmanual labour or clerical work as a regular part of their dutiesnamely:G

(i) The Manager, Deputy Manager, Assistant Manager,Production Manager, Works Manager and the GeneralManager;

(ii) Departmental Head, Assistant Departmental Head,HDepartmental in-charge or Assistant Departmental in-charge;

(iii) Chief Engineer, Deputy Chief Engineer and AssistantEngineer;

(iv) Chief Chemist, Laboratory incharge;

(v) Personnel Manager, Personnel Officer;

(vi) Labour Officer, Assistant Labour Officer;

(vii) Welfare Officer, Additional Welfare Officer or AssistantWelfare Officer;

(viii) Safety Officer;

(ix) Security Officer;

(x) Foreman, Chargeman, Overseer and Supervisor;

(xi) Jobber in Textile Factories;

(xii) Head Store Keeper and Assistant Store Keeper;

(xiii) Boiler Sarang or such Boiler Attendants who are in-chargeof a battery of boilers and are only required to do supervisorywork;

(xiv) Any other person who in the opinion of the Chief Inspector,holds a position of supervision or Management and is sodeclared in writing by him.”

29. Apparently, the post of Supervisor is included in Rule 100, asa post exempted from the application of the provisions of Chapter VI.

30. But the claim of the respondents is that the proviso embeddedin Rule 100(1) makes the exemption inapplicable to those who arerequired to perform manual labour or clerical work as a regular part oftheir duties.

31. On a question of fact as to whether the respondents are requiredto perform manual labour or clerical work as a regular part of theirduties, the Tribunal has reached diametrically opposite conclusions, onein the case of A.K. Biswas and others and the other in the case ofremaining set of employees.

32. The chart of duties indicated in the ACRs does not show thatthe respondents are required to perform manual labour or clerical workas a regular part of their duties.

33. The High Court fell into an error in holding that the performanceof certain functions, such as setting right malfunctioning of feeder, side- A

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Alay, double-sheet detector, photocell, etc., to ensure uninterrupted runningof the machinery, are manual functions. But we do not think so.

34. In any case, the respondents, who are holders of civil posts orin the civil services of the State till the year 2006, could not have claimedthe benefits of the provisions of Chapter VI of the 1948 Act, dehors theBservice rules.

35. Though the decision in Burmah Shell Oil Storage andDistribution Company of India Ltd. is heavily relied upon by Shri DhruvMehta, learned senior counsel appearing for the appellants, we do notthink that the same has any application to the case on hand. This is forCthe reason that the definition of “workman” in Section 2(s) of the 1947Act specifically excludes persons employed in a supervisory capacity.But such an exclusion is not there in the definition of the very sameword “worker” in Section 2(l) of the 1948 Act.

36. The distinction can be well understood if these definitions arepresented in a tabular form side by side:-D

E

F

G

H

37. Sub-clause (iv) of clause (s) of Section 2 of the IndustrialDisputes Act, 1947, is conspicuously absent in the corresponding provisionin the 1948 Act. Therefore, we would not place our conclusion on thebasis of the decision in Burmah Shell Oil Storage and DistributionCompany of India Ltd.

38. Similarly, the argument of Shri S.S. Deshmukh, learned counselappearing for the respondents based upon the proviso to Section 64(1)of the 1948 Act read with Section 1(6) of the 1936 Act, cannot distractour attention. In any case, Section 1(6) of the 1936 Act as it stood beforethe Amendment Act 41 of 2005 which came into effect on 9.11.2005reads as follows:- “—1. Short title, extent, commencement and application.

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(6) Nothing in this Act shall apply to wages payable in respect ofa wage-period which over such wage-period, average onethousand six hundred rupees a month or more.”

39. But in the case on hand, the distinction made by theGovernment of India in their Office Order dated 21.12.1988 related topersons drawing a basic pay of more than Rs.2,200/-. Therefore, theprovisions of the Payment of Wages Act, were not applicable to therespondents herein and as a sequitur, the Proviso to Section 64(1) of the1948 Act cannot be pressed into service.

40. Thus, we find (i) that the Tribunal as well as the High Courtdid not consider the distinction between persons in Government serviceand those in private service and the effect of the statutory rules upon theconditions of service of the respondents, including their liability to work A

B

C

D

E

F

G

H

Afor extra hours; (ii) that the Tribunal reached diametrically oppositefindings of fact in respect of persons holding similar supervisory posts;and (iii) that therefore, the orders of the Tribunal and the High Court areunsustainable.

41. In view of the above, all the appeals are allowed and theBimpugned order of the High Court is set aside. However, we find thatsome of the employees have retired, some have passed away and inrespect of some who have passed away, the appeals have been abated.Therefore, even while allowing the appeals and setting aside the impugnedorder of the High Court, we direct the appellants not to effect anyrecovery from those to whom payments have already been made. NoCorder as to costs.

Pending application(s), if any, stands disposed of accordingly.

D

Divya Pandey

(Assisted by : Sirgapoor Sahil Reddy and Shevali Monga, LCRAs)

Appeals allowed.

E

F

G

H